A Texas living will is a legal document that allows you to state your wishes about life-sustaining treatment if you are diagnosed with a terminal or irreversible condition and are unable to communicate your medical decisions.
In Texas, a living will is formally called a Directive to Physicians and Family or Surrogates.
The document allows you to tell your physicians whether you want life-sustaining treatment continued or withheld under certain end-of-life circumstances.
A living will is different from your Last Will and Testament. It does not determine who inherits your property after your death. Instead, it addresses medical treatment while you are still alive.
What Does a Texas Living Will Do?
A living will communicates your preferences about medical treatment if you later become unable to make your wishes known because of illness or injury.
Texas law specifically allows you to state your preferences if your physician determines that you have either a terminal condition or an irreversible condition. The statutory form gives you choices about whether life-sustaining treatment should be continued or whether treatment should be limited to care intended to keep you comfortable and allow you to die naturally.
These decisions are deeply personal and often depend on your values, religious beliefs, medical history, and views about quality of life.
Putting your wishes in writing can help your family and physicians understand what you would want if you are no longer able to explain those wishes yourself.
What Is a Terminal Condition?
Under the Texas living will framework, a terminal condition generally refers to an incurable condition caused by injury, disease, or illness that, according to reasonable medical judgment, will result in death within a relatively short period even with available life-sustaining treatment.
The Texas statutory form specifically addresses a situation in which your physician believes you are suffering from a terminal condition from which you are expected to die within six months even if life-sustaining treatment is provided according to prevailing standards of medical care.
In that situation, you can state whether you want available life-sustaining treatment or prefer that treatment other than comfort care be discontinued or withheld.
What Is an Irreversible Condition?
An irreversible condition is different from a terminal condition.
Generally, it refers to a condition, injury, or illness that may be treated but is never expected to improve to the point that you can care for yourself or make decisions for yourself, and that would ultimately result in death without life-sustaining treatment.
The Texas form allows you to make a separate treatment choice for an irreversible condition, because some people may want different treatment depending on whether death is expected within months or whether they could survive much longer only through ongoing life-sustaining treatment.
What Is Life-Sustaining Treatment?
Life-sustaining treatment generally refers to treatment that, based on reasonable medical judgment, sustains a patient’s life and without which the patient would die.
Depending on the circumstances, this can include interventions such as:
- Mechanical ventilation;
- Artificially administered nutrition or hydration;
- Dialysis;
- Certain medications or procedures that maintain vital functions; and
- Other medical interventions that prolong life without curing the underlying terminal or irreversible condition.
A decision to withhold life-sustaining treatment does not mean withholding comfort care.
The Texas living will form specifically contemplates continuing treatment needed to keep a patient comfortable even when other life-sustaining treatment is withheld.
Who Can Sign a Texas Living Will?
A competent adult can execute a Texas Directive to Physicians.
The person signing the directive should understand the nature and consequences of the document and be acting voluntarily.
You do not need to wait until you are seriously ill to sign one. In fact, the best time to complete advance directives is usually while you are healthy and able to consider your choices carefully.
How Do You Sign a Texas Living Will?
A written Texas living will can generally be signed in one of two ways:
- In the presence of two qualified adult witnesses; or
- Before a notary public.
If you use witnesses, both must be competent adults. Additionally, at least one witness must be a person who is not:
- Someone you designated to make healthcare or treatment decisions for you;
- Related to you by blood or marriage;
- Entitled to inherit from your estate;
- Your attending physician;
- An employee of your attending physician;
- Certain employees or owners of a healthcare facility where you are a patient; or
- A person who has a claim against your estate.
If you sign before a notary, witnesses are not required.
A physician, healthcare professional, or healthcare facility cannot require notarization of a directive that was otherwise properly executed.
When Does a Texas Living Will Take Effect?
A living will does not control every medical decision you make.
While you are capable of making and communicating your own decisions, you remain in control of your medical care. The directive becomes relevant when you are unable to make treatment decisions and your medical circumstances fall within the situations addressed by the document.
Texas law uses the term “qualified patient” for a patient who has been diagnosed with a terminal or irreversible condition and whose attending physician has certified that diagnosis in writing.
Once you sign a living will, give a copy to your physician and ask that it be included in your medical record. You may also want to provide copies to close family members and the person named as your medical agent.
Can You Still Make Your Own Decisions After Signing a Living Will?
Yes.
Signing a living will does not give up your right to make healthcare decisions.
As long as you are capable of making your own decisions, your current instructions control.
You can consent to treatment, refuse treatment, or change your mind regardless of what you previously wrote in the directive.
The living will is intended to speak for you only when you can no longer speak effectively for yourself.
Can You Revoke a Texas Living Will?
Yes.
You can revoke a Texas living will at any time, even during the final stages of a terminal illness.
Texas law allows revocation by several methods, including an oral statement or a written revocation. You may also destroy the directive or direct another person to destroy it in your presence. If you revoke the directive, tell your physician so the revocation can be documented in your medical record.
Importantly, you also retain the right to request life-sustaining treatment regardless of an earlier directive.
Can You Change a Living Will?
Yes.
If your preferences change, the cleanest approach is usually to revoke the old directive and execute a new one reflecting your current wishes.
You should periodically review your living will, especially after:
- A significant medical diagnosis;
- Marriage or divorce;
- The death of a spouse or healthcare agent;
- A major change in your religious or personal beliefs;
- A significant change in your health; or
- Simply the passage of several years.
Can a Living Will Be Created for a Minor in Texas?
Texas law includes special rules for minors who have a terminal or irreversible condition.
A parent, legal guardian, or adult spouse may under certain circumstances execute a directive on behalf of a minor. However, a competent minor may request life-sustaining treatment notwithstanding the existence of a directive.
Because decisions involving seriously ill minors can involve additional statutory and medical issues, these situations should be addressed carefully with the child’s physicians and appropriate legal counsel.
Can a Texas Living Will Be Oral?
In limited circumstances, yes.
Texas law permits a competent adult who is already a qualified patient to issue a nonwritten directive. The oral directive must satisfy statutory requirements, including being made in the presence of the attending physician and qualified witnesses.
The physician documents the directive and the witnesses in the patient’s medical record.
For advance planning, however, a written directive is generally preferable because it creates a clear record of your wishes before a medical crisis occurs.
What Is the Difference Between a Living Will and a Medical Power of Attorney?
A living will and a Texas Medical Power of Attorney address different issues.
A living will provides your own instructions about life-sustaining treatment in the limited circumstances involving a terminal or irreversible condition.
A Medical Power of Attorney names a trusted person—called your agent—to make healthcare decisions for you whenever you are unable to make them yourself, subject to the terms of the document and applicable law.
Your agent may need to make decisions that a living will does not specifically address.
For example, you may be temporarily unconscious after an accident but have no terminal or irreversible condition. Your living will may not control that situation, but your Medical Power of Attorney may allow your agent to make necessary medical decisions.
For that reason, the two documents usually work best together.
What Is the Difference Between a Living Will and a DNR?
A living will is not the same thing as a Do-Not-Resuscitate order.
A living will provides broader instructions regarding life-sustaining treatment in the event of a terminal or irreversible condition, while a DNR addresses a narrower question: whether healthcare providers should attempt cardiopulmonary resuscitation if your breathing or heartbeat stops.
Texas also recognizes an Out-of-Hospital Do-Not-Resuscitate Order, commonly called an OOH-DNR.
An OOH-DNR is specifically designed to instruct emergency medical personnel and other healthcare professionals outside a hospital setting not to perform certain resuscitation measures.
It does not mean that all medical care stops. Comfort care and other appropriate treatment can still be provided.
A person with serious health concerns may therefore have both a living will and an OOH-DNR, depending on his or her wishes and medical circumstances.
What Is the Difference Between a Living Will and a Last Will and Testament?
Despite the similar terminology, the documents have completely different purposes.
A Last Will and Testament governs matters that arise after your death, such as:
- Who inherits your probate property;
- Who serves as Executor;
- Who should serve as guardian of minor children; and
- Whether property should remain in trust for beneficiaries.
A living will operates while you are alive and addresses certain medical treatment decisions.
Signing one does not change or revoke the other.
What Happens if You Do Not Have a Living Will?
If you do not have a living will and later become unable to communicate, healthcare decisions may need to be made by an agent under a Medical Power of Attorney, a legal guardian, family members, or other authorized surrogate depending on the circumstances.
Your family members may not necessarily make decisions you oppose; however, without your written guidance, they may be forced to determine what they believe you would have wanted. This may cause conflict when family members disagree or =feel uncertain about whether continuing treatment is consistent with your wishes.
A living will can provide clarity and relieve family members of some of the emotional burden of making those decisions without guidance.
What if Your Living Will and Medical Power of Attorney Conflict?
Your advance directives should be prepared to work together rather than contradict each other.
A Medical Power of Attorney agent generally must follow your known wishes, including valid instructions contained in your Directive to Physicians.
This is one reason it is important to provide clear instructions about your treatment wishes in your living will and to discuss your wishes with your agent. Your agent should understand not only what the document says but also the values and preferences behind your choices.
Should You Talk to Your Family About Your Living Will?
Yes.
A written document is important, but conversations can make the document much more useful.
Consider discussing:
- What quality of life means to you;
- How you feel about prolonged mechanical support;
- Your religious or moral beliefs concerning end-of-life care;
- Your preferences regarding comfort and pain management; and
- The circumstances in which you would or would not want aggressive treatment.
Your physician can also help explain the medical implications of the choices contained in the directive.
The official Texas form itself encourages people to discuss their values and wishes with family, a chosen spokesperson, and their physician.
Where Should You Keep Your Texas Living Will?
Do not prepare a living will and then place the only copy somewhere no one can access.
You should generally:
- Keep the original with your estate planning documents;
- Give a copy to your physician;
- Ask that a copy be placed in your medical record;
- Give a copy to your Medical Power of Attorney agent;
- Tell close family members that the document exists; and
- Keep an accessible electronic copy if appropriate.
If you routinely receive care through a particular hospital or healthcare system, ask how advance directives can be added to your records there.
Does a Texas Living Will Affect Life Insurance or Your Estate?
No.
A living will governs medical treatment decisions. It does not determine how your property passes, and it does not replace your Will, trust, beneficiary designations, or other estate planning documents.
It also does not function as a financial power of attorney.
Your estate plan should include separate documents addressing medical decisions, financial matters, and disposition of property after death.
What Other Texas Advance Directives Should You Consider?
A comprehensive Texas estate plan often includes several documents that address incapacity and healthcare decisions.
In addition to a Directive to Physicians, you may want to consider:
- A Medical Power of Attorney;
- A HIPAA Authorization allowing designated people to access medical information;
- An Out-of-Hospital Do-Not-Resuscitate Order when medically appropriate; and
- A Durable Power of Attorney for financial and legal matters.
These documents are designed for different purposes and often complement one another.
Frequently Asked Questions About Texas Living Wills
Is a living will required in Texas?
No. You are not legally required to have a living will. It is an optional advance directive that allows you to document your treatment preferences.
Do I need a lawyer to sign a Texas living will?
No. Texas provides a statutory form, and an attorney is not required merely to execute the document. However, an estate planning attorney can help coordinate the living will with your Medical Power of Attorney and the rest of your estate plan.
Does a Texas living will need to be notarized?
No, not if you properly execute it before two qualified witnesses. Alternatively, you may sign before a notary instead of using witnesses.
When should I create a living will?
Ideally, before you need one. Advance directives are easiest to consider when you are healthy, capable, and not under the pressure of an immediate medical crisis.
Can I change my mind?
Yes. You can revoke your living will at any time, and while you are capable of making your own healthcare decisions, your current wishes control.
Will a living will stop doctors from giving me pain medication or comfort care?
No. Choosing to withhold life-sustaining treatment does not mean refusing comfort care. The statutory directive specifically contemplates continued treatment intended to keep you comfortable.
Is a living will enough by itself?
Usually not. A living will applies only to particular end-of-life circumstances. A Medical Power of Attorney provides broader authority for someone you trust to make healthcare decisions when you cannot.
A Living Will Gives Your Family Guidance When You Cannot Speak for Yourself
Most people hope their living will will never need to be used. But if you someday face a terminal or irreversible condition and cannot communicate your wishes, having those wishes documented can make an extraordinarily difficult situation clearer for your family and medical team.
A Texas Directive to Physicians allows you to decide in advance what kind of life-sustaining treatment you would want under those circumstances.
When coordinated with a Medical Power of Attorney, HIPAA Authorization, and the rest of your estate plan, it can help ensure that the people responsible for your care understand both your instructions and your values.
Rania Combs is licensed to practice law in Texas and North Carolina and helps clients create comprehensive estate plans that address both incapacity and end-of-life planning.
Schedule a consultation if you would like to create or review your Texas advance directives.
